Lectures Week of Sept 18
1. Bill of Rights and Early Civil Liberties
2. Evolution of Federalism”
2023-09-15
Agenda
- Announcements
- Review *
- Part 1: The Bill of Rights and Early Civil Liberties until about 1810
- Review federalism including 10th Amendment from Bill of Rights *
- Part 2: The evolution of federalism after the passage of the Bill of Rights
*Two day class only. One day class will still have the review slides available in Canvas.
Announcements
Lowest Inquizitive grade will be dropped. This is in addition to the GOOJF Card
New Canvas Module: Space for Sharing notes, Study questions, and Answers from me.
Explanation of Inquizitive grading in the third discussion area above.
Basically, you can stop when you reach the required number of questions, but you get graded on percent correct at that point. You can keep going and eventually reach 100%. (The scoring has a mechanism to throw out wrong answers after you master the material you missed.) Bottom line: keep going until you are happy with your score.
Review
- American philosophy: government exists for protection of individual rights from violence
- Modern terms: Empowerment of the individual
- Government power: coercive armed violence (cav)
- Strong central government has huge power
- Separation of Powers, Checks and Balances, Federalism created to restrain federal government power (cav)
- The Anti-federalists wanted more protection…
Part 1: Bill of Rights
Restraint on federal government
- the demand was for a restraint on the federal government - Most state constitutions had a bill or declaration of rights - Barron v. Baltimore (1833), Chief Justice John Marshall, United States Supreme CourtFirst 10 amendments to Constitution
Not an exclusive list of the rights of the people
10th Amendment - Powers of the states, rights of the people
First Amendment: Protecting expression and conscience
Constitution of the United States: First Amendment
- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First Amendment: Religion
“no law respecting an establishment of religion”
No official national church
- No automatic church membership on birth - No tax support for churches - No government payment of preacher's salaries
First Amendment: Religion
“no law respecting an establishment of religion”
No official national church
- No automatic church membership on birth - No tax support for churches - No government payment of preacher's salariesNo interference with the state established churches
- 1776 all 13 states had established churches - 1786 Virginia disestablished Church of Englan - New Hampshire 1817 - Massachusetts (Congregationalist) 1833
Kidd, Colin. “Civil Theology and Church Establishments in Revolutionary America.” The Historical Journal. Vol. 42, No. 4 (Dec., 1999). pp. 1007-1022
First Amendment: Religion
“no law respecting an establishment of religion”
No official national church
- No automatic church membership on birth - No tax support for churches - No government payment of preacher's salariesNo interference with the state established churches
- 1776 all 13 states had established churches - 1786 Virginia disestablished Church of Englan - New Hampshire 1817 - Massachusetts (Congregationalist) 1833#2 will change in 1940
Kidd, Colin. “Civil Theology and Church Establishments in Revolutionary America.” The Historical Journal. Vol. 42, No. 4 (Dec., 1999). pp. 1007-1022
First Amendment: Free exercise
- Free exercise of religion
Second Amendment: Right to bear arms, independent state militias
Constitution of the United States: Second Amendment
- “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Second Amendment: A power and a right
- There are two clauses (with unneeded commas)
- Clause 1 implies a state power - the power to have an independent militia to secure the state’s freedom
- Clause 1 explains one reason the second is desirable
- Clause 2 grants a right - the right to bear arms
- Clause 2 specifies the people hold the right
- Does disagreement about the explanation negate the right?
- What does well regulated mean?1
1 - Judges have argued about the last two since at least the 1920s: We can disagree
Third Amendment: Quartering of Soldiers
Constitution of the United States: Third Amendment
- “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
Fourth Amendment: Search and seizure
Constitution of the United States: Fourth Amendment
- “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fourth Amendment: Two parts
- No unreasonable search and seizure
- Requirements for warrants
Fourth Amendment: Two parts
- No unreasonable search and seizure
- Right of the people
Fourth Amendment: Two parts
No unreasonable search and seizure
Right of the people
Establishes the sanctity of four things:
- The person or individual
Fourth Amendment: Two parts
No unreasonable search and seizure
Right of the people
Establishes the sanctity of four things:
- The person or individual - The home or dwelling place
Fourth Amendment: Two parts
No unreasonable search and seizure
Right of the people
Establishes the sanctity of four things:
- The person or individual - The home or dwelling place - The papers regardless of location
Fourth Amendment: Two parts
No unreasonable search and seizure
Right of the people
Establishes the sanctity of four things:
- The person or individual - The home or dwelling place - The papers regardless of location - The personal possessions regardless of location
Fourth Amendment: Two parts
No unreasonable search and seizure
Right of the people
Establishes the sanctity of four things:
- The person or individual - The home or dwelling place - The papers regardless of location - The personal possessions regardless of location
Fourth Amendment: Two parts
No unreasonable search and seizure
Right of the people
Establishes the sanctity of four things:
- The person or individual - The home or dwelling place - The papers regardless of location - The personal possessions regardless of location
Fourth Amendment: Two parts
No unreasonable search and seizure
Requirements for warrants
- probable cause - Oath or affirmation - description of place to be search - description of person or things to be seized
Fourth Amendment: Two parts
No unreasonable search and seizure
Requirements for warrants
Unreasonable is not defined
- Confusion because of 2nd part: Are warrants always required for a search to be reasonable? - Are all searches with warrants reasonable?
Fourth Amendment: Two parts
No unreasonable search and seizure
Requirements for warrants
Unreasonable is not defined
- Confusion because of 2nd part: Are warrants always required for a search to be reasonable? Not according to the courts - Are all searches with warrants reasonable? Not necessarily<sup>1</>
Fifth Amendment: Due Process and Property Rights
Constitution of the United States: Fifth Amendment
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Fifth Amendment: Due Process and Property Rights
Major civilian crimes require an indictment by a grand jury
- does not apply to minor crimes (initially) - exception for active military - courts martial - exception for militia when called into active service - courts martial
Fifth Amendment: Due Process and Property Rights
- Major civilian crimes require an indictment by a grand jury
- Double Jeopardy!
Double Jeopardy!
Fifth Amendment: Due Process and Property Rights
Major civilian crimes require an indictment by a grand jury
May not be tried again for the same crime after being acquitted
- Does not apply to second trial after appeal - May apply if a trial reaches a certain point and ends in a mistrial - Does not apply if the jury fails to reach a verdict
Fifth Amendment: Due Process and Property Rights
Major civilian crimes require an indictment by a grand jury
May not be tried again for the same crime after being acquitted
Protection against self-incrimination
- Defendant not required to testify against him or herself in a criminal trial - Does not apply to civil trials - Has been extended considerably to assure that involuntary statements are not used and that statements are not coerced
Fifth Amendment: Due Process and Property Rights
Major civilian crimes require an indictment by a grand jury
May not be tried again for the same crime after being acquitted
Protection against self-incrimination
Due Process of Law
- government must follow proper procedures - protects life - protects liberty - protects property
Fifth Amendment: Due Process and Property Rights
Major civilian crimes require an indictment by a grand jury
May not be tried again for the same crime after being acquitted
Protection against self-incrimination
Due Process of Law
- government must follow Due Process = proper procedures - protects life - protects liberty - protects property
Fifth Amendment: Due Process and Property Rights
- Major civilian crimes require an indictment by a grand jury
- May not be tried again for the same crime after being acquitted
- Protection against self-incrimination
- Due Process of Law
- Takings Clause
What if a new city dump causes the value of property next door to drop?
Fifth Amendment: Due Process and Property Rights
- Major civilian crimes require an indictment by a grand jury
- May not be tried again for the same crime after being acquitted
- Protection against self-incrimination
- Due Process of Law
- Takings Clause
What if a new federal regulation causes the value of property to drop or causes someone to lose income?
Sixth Amendment: Rights of defendants in trials
Constitution of the United States: Sixth Amendment
- “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Sixth Amendment: Rights of defendants in trials
- Speedy trial
- Public trial
Sixth Amendment: Rights of defendants in trials
Speedy trial
Public trial
Jury trial
- the State and district where the crime was committed - District previously ascertained by law - who does this?
Sixth Amendment: Rights of defendants in trials
Speedy trial
Public trial
Jury trial
- the State and district where the crime was committed - District previously ascertained by a judge - Does not specify jury requirements
Sixth Amendment: Rights of defendants in trials
- Speedy trial
- Public trial
- Jury trial
- Right to know the charges
Sixth Amendment: Rights of defendants in trials
- Speedy trial
- Public trial
- Jury trial
- Right to know the charges
- Right to confront witnesses against him
Sixth Amendment: Rights of defendants in trials
- Speedy trial
- Public trial
- Jury trial
- Right to know the charges
- Right to confront witnesses against him
- Right to subpoena witnesses for the defense
- Right to an attorney
Seventh Amendment: Civil trials
Constitution of the United States: Seventh Amendment
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Seventh Amendment: Federal Civil trials
- Trial by jury in cases with large values
- Re-examination Clause: Judges may not overturn jury verdicts except in accordance with the rules
Eight Amendment: Bail, Fines, Punishment
Constitution of the United States: Eighth Amendment
- “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Eight Amendment: Bail, Fines, Punishment
- No excessive bail
- No excessive fines
- No cruel and unusual punishment
None of these are defined. Do we follow the standard of 1791 or the standard of 2023?
Ninth Amendment: Other rights
Constitution of the United States: Ninth Amendment
- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Ninth Amendment: Other rights
- Federalists were worried that listing rights would encourage the abuse of other rights
- Some rights were already listed in the Constitution like the writ of habeas corpus
- Much debate about the meaning
- Rarely referenced by the Courts
- Seems to be reinforcing the idea that federal government not do anything explicitly permitted by the Constitution
Tenth Amendment: State powers
Constitution of the United States: Amendment Ten
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Tenth Amendment: State powers
Powers not expressly given to the federal government
- Article I Powers of Congress - Article II Powers of President - Article III Powers of the Courts
Tenth Amendment: State powers
- Powers not expressly given to the federal government
- Powers not prohibited to the States
Examples:
- entering treaties
- coining money
- creating legal tender
- granting titles of nobility
- taxing imports or exports
- impairing the obligation of contract
- engage in War
Tenth Amendment: State powers
- Powers not expressly given to the federal government
- Powers not prohibited to the States
- remain with the individual States or the people
The Constitution doesn’t specify which powers remain with the States and which with the people.
Review of federalism.
- Sovereignty: Supreme power
- Unitary systems: Single, national government is sovereign
- Confederacy: state governments are sovereing, national government is dependent
- Federalism: Sovereignty is shared as defined by the Constitution
- Most of this is accomplished in Article I of the US Constitution
- Federalism is an additional part of Separation of Powers and a Check on federal power
Evolution of Federalism
Powers prohibited to Congress
Examples:
- No direct taxes unless in proportion to the census
- No tax on exports
- No preference to any State's ports
- No titles of nobility10th Amendment: Reserved Powers
- Powers not expressly given to the federal government
- Powers not prohibited to the States
- remain with the individual States or the people
First central banks
First Bank of the United States - 1791
- Opposed by Jefferson and Madison - Claims it was unconstitutional - Enriched merchants and bankers at the expense of the majority - Expanded federal power - 20 year charter, lapsed in 1811Second Bank of the United States - 1816
- Allowed to have branches in multiple states - Similar arguments to first Bank - Supported by Madison - Lacked many modern central bank powers - New charter vetoed by Andrew Jackson - 20 year charter lapsed in 1836 - Became a Pennsylvania state bank
States asserted their power: early 1800s
Civil War: established federal supremacy
Westward expansion: increased federal power
1913 Federal Reserve Bank and Income Tax
New Deal: further expansion of federal power
Great Society 1960s
New Federalism: 1970s
GOVT2306, Fall 2023, Instructor: Tom Hanna